Ex Parte Das et al

Patent Trial and Appeal Board

Jan 23, 2017

12497433 (P.T.A.B. Jan. 23, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/497,433 07/02/2009 Abhik Das 82249073 6469
56436 7590 01/25/2017
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
VO, CECILE H
ART UNIT PAPER NUMBER
2153
NOTIFICATION DATE DELIVERY MODE
01/25/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABHIK DAS and RAJESH ANANTHA KRISHNAIYER
Appeal 2016-002603
Application 12/497,4331
Technology Center 2100
Before CARLA M. KRIVAK, HUNG H. BUI, and
AARON W. MOORE, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Office Action rejecting claims 1, 2, 4, 6—11, 13—15, and
17—24, which are all the claims pending on appeal. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Hewlett-Packard
Development Company, LP. App. Br. 2.
2 Our Decision refers to Appellants’ Appeal Brief filed June 1, 2015 (“App.
Br.”); Reply Brief filed January 8, 2016 (“Reply Br.”); Examiner’s Answer
mailed November 12, 2015 (“Ans.”); Final Office Action mailed Mar. 20,
2015 (“Final Act.”); and original Specification filed July 2, 2009 (“Spec.”).
Appeal 2016-002603
Application 12/497,433
STATEMENT OF THE CASE
Appellants’ invention relates to a method of selective replication in a
storage area network (SAN) to facilitate data backup and archiving
operations. Spec. H 3, 25.
Claims 1,7, and 14 are independent. Claim 1 is illustrative of
Appellants’ invention and is reproduced below with disputed limitations in
italics:
1. A method, comprising:
receiving user input distinguishing data for which regular
backup is desired from data for which regular backup is not
desired, said user input specifying any of specific files,
directories and file types for replication;
identifying a first range of data blocks in a storage device
array corresponding to data files selected for replication based on
said user input, said first range of data blocks being managed by
a source host device;
mapping, with at least one of a controller of said storage
device array and a controller of a destination host device, said
first range of data blocks to a second range of data blocks in said
storage device array managed by said destination host device;
copying, with said storage device array controller, said
data blocks from said first range that contain said data files
selected for replication to said corresponding data blocks in said
second range; and
removing a number of the copied data blocks representing
data not selected for replication while maintaining original
offset positions of said data blocks in said first range in the
copied data blocks in said second range.
App. Br. 22 (Claims App.).
Examiner’s Rejection and References
Claims 1, 2, 4, 6—11, 13—15, and 17—24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Haselton et al. (US 2007/0027935 Al;
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Application 12/497,433
published Feb. 1, 2007; “Haselton”), Burton et al. (US 7,809,917 B2; issued
Oct. 5, 2010; “Burton”), Nakajima et al. (US 2010/0049916 Al; published
Feb. 25, 2010; “Nakajima”), and Komarov et al. (US 2008/0082593 Al;
published Apr. 3, 2008; “Komarov”). Final Act. 2—17.
ISSUE
Based on Appellants’ arguments, the dispositive issue presented on
appeal is whether the prior art teaches or suggests several limitations of
independent claims 1, 7, and 14. App. Br. 11—20; Reply Br. 4—16.
ANALYSIS
In support of the rejection of claim 1, the Examiner finds the
combination of Haselton, Burton, Nakajima, and Komarov teaches or
suggests Appellants’ claimed method of selective replication in a storage
device array comprising ah claim limitations. Final Act. 3—7 (citing
Haselton || 24—26; Burton 11: 44^45, Fig. 7; Nakajima Tflf 14, 145, Figs. 32—
33; Komarov Tflf 10, 80). In particular, to support the conclusion of
obviousness, the Examiner finds Komarov teaches the disputed limitation
“removing a number of the copied data blocks representing data not selected
for replication while maintaining original offset positions of said data blocks
in said first range in the copied data blocks in said second range” in the
context of Komarov’s online backup procedure including (1) blocks that
constitute files selected for backup, and (2) other blocks that constitute files
not selected for backup and are removed from the shrinkable snapshot, along
with Komarov’s disclosure that “updated data are placed to a new location
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Application 12/497,433
(e.g. are copied to an auxiliary storage) while original data remain intact on a
storage.” Final Act. 6—7 (citing Komarov H 10, 80).
Appellants only dispute the Examiner’s factual findings regarding
Komarov. Appellants acknowledge Komarov teaches snapshot-based online
backup operations, but argue Komarov’s “blocks that constitute files
selected for backup are simply copied to another data storage device without
consideration of offsets with those data blocks copied” and, as such,
Komarov does not teach or suggest “maintaining original offset positions of
said data blocks in said first range in the copied data blocks in said second
range,” as recited in claim 1. App. Br. 11—14 (emphasis added).
Accordingly, Appellants argue because Komarov does not teach or suggest
“removing a number of the copied data blocks representing data not selected
for replication while maintaining original offset positions of said data blocks
in said first range in the copied data blocks in said second range,” there is no
basis to support the conclusion of obviousness. App. Br. 14.
We do not find Appellants’ arguments persuasive. At the outset, we
note there is no requirement that the prior art must use the same words to
describe a claim element in order to be deemed as teaching or disclosing that
claim element. “[T]he reference need not satisfy an ipsissimis verbis test,”
i.e., identity of terminology is not required. In re Gleave, 560 F.3d 1331,
1334 (Fed. Cir. 2009). Prior art references must be “considered together
with the knowledge of one of ordinary skill in the pertinent art.” In re
Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). As such, it is proper to take
into account not only the literal and specific teachings of the reference, but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom. In re Preda, 401 F.2d 825, 826 (CCPA 1968).
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The term “original offset positions” recited in claim 1 is not defined in
Appellants’ Specification. Nor is the disputed limitation of Appellants’
claim 1: “removing a number of the copied data blocks representing data not
selected for replication while maintaining original offset positions of said
data blocks in said first range in the copied data blocks in said second range”
described anywhere in Appellants’ Specification. Rather, the term “offset
positions” is described in the context of mapping of files selected for
replication at a target location (destination), step #3 shown in Figure 2, as
reproduced below with additional markings for illustration.
SELECTIVE EESIKIATSON: AS AES.
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As shown in Figure 2, Appellants’ selective replication is
accomplished through four (4) steps. Spec. 125. First, a user or system
administrator selects files, directories, and/or file types in a volume to be
backed-up at block 202. Spec. 126. Second, client software 106-1 at source
104, shown in Figure 1, queries the volume to be backed-up (replicated) to
determine the range of blocks at source 104 that contains data for the files
selected for backup at block 204. Spec. 127. Third, a replica containing
only blocks required to store files selected for backup is created by mapping
data to be replicated from the range of blocks managed at source 104 to a
range of blocks managed at destination 110, via either (1) a “firmware-
based” approach or (2) a “client-based” approach, and is then presented to
destination 110 at block 206. Spec. 128. Lastly, after mapping, via either
(1) a “firmware-based” approach or (2) a “client-based” approach, client
software 106-2 at destination 110, shown in Figure 1, performs cleanup of
the replica, including deletion of unwanted blocks containing files not
selected for replication at block 212. Spec. 30, 48.
According to Appellants’ Specification, only the “firmware-based”
approach to mapping requires:
[t]he blocks in the selected range which contain data relating to
files which have been selected are copied (step 706) to create the
replica. Unreplicated blocks in the selected range are still
allocated to destination range of blocks in the storage array to
maintain (step 708) continuity in data offset positions. The
replica may then be presented to a destination host.
Spec. 146 (emphasis added). In other words, when the “firmware-based”
approach to mapping is used, blocks containing files not selected for
replication
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Application 12/497,433
will not be written to at this time, but may be reserved for other
replication processes that may replicate the unreplicated blocks
(606) of the source volume (108-1, Fig. 1) at a later time.
Furthermore, to maintain file consistency, the block may remain
in the same offset position. It will be apparent to those skilled in
the relevant art that this is done to satisfy the methods of which
storage is managed.
Spec. 144 (emphasis added).
In contrast to the “firmware-based” approach to mapping, the “client-
based” approach to mapping requires that “all blocks may be replicated and
[any] unwanted blocks removed in the cleanup process,” i.e., “the cleanup
process may include deletion of unwanted files by destination client
software (106-2, Fig. 1).” Spec. 147. In other words, when the “client-
based” approach to mapping is used, there is no need to determine or
maintain any type of data offset positions. Instead, all blocks are replicated
from source 104 to destination 110, shown in Figure 1, and only then are
“unwanted blocks” removed at destination 110 during the cleanup process.
Spec. 147.
Based on Appellants’ Specification, we find the term “original offset
positions of data blocks” as recited in Appellants’ claim 1 can only be
understood in the context of the “firmware-based” approach to mapping,
shown in Figure 2, and must be “considered together with the knowledge of
one of ordinary skill in the pertinent art.” In re Paulsen, 30 F.3d at 1480. In
that context, “unreplicated blocks in the selected range are still allocated to
destination range of blocks in the storage array to maintain (step 708)
continuity in data offset positions” (Spec. 146, emphasis added) but “will
not be written [into destination 100, shown in Figure 1]” and “may be
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reserved for other replication processes that may replicate the unreplicated
blocks (606) of the source volume (108-1, Fig. 1) at a later time.” (Spec.
144, emphasis added). However, Appellants’ Specification is silent
regarding how these unwanted or unreplicated blocks can be written into a
replica. Nevertheless, we accept that those skilled in the art would
understand how the “storage is managed” as expressly acknowledged by
Appellants’ Specification. Spec. 144.
Regardless, Appellants’ “cleanup process” (where unwanted blocks
containing files not selected for replication are deleted) is separate and is
done only after mapping, via either (1) a “firmware-based” approach or (2) a
“client-based” approach, including any reference to the “original offset
positions of [] data blocks.” As such, we find Appellants’ Specification does
not teach or support the teaching that “copied data blocks representing data
not selected for replication” can be removed or deleted “while [at the same
time] maintaining original offset positions of said data blocks in said first
range in the copied data blocks in said second range” in the manner recited
in Appellants’ claim 1.
To the extent the disputed limitation of Appellants’ claim 1 can be
understood in the context of Appellants’ Specification, we find a skilled
artisan would understand that Komarov teaches the disputed limitation in the
context of Komarov’s online backup procedure including (1) blocks that
constitute files selected for backup, and (2) other blocks that constitute files
not selected for backup and are removed from the shrinkable snapshot. Final
Act. 6—7. Further, Komarov’s disclosure that “updated data are placed to a
new location (e.g., are copied to an auxiliary storage) while original data
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Application 12/497,433
remain intact on a storage,” i.e., maintaining original offset positions of data
blocks. Id. (citing Komarov 10, 80).
As correctly recognized by the Examiner, “maintaining original offset
positions of said data blocks in said first range in the copied data blocks in
said second range” is understood by those skilled the art when unwanted or
unreplicated blocks are allocated to a destination range of blocks in a storage
array. Ans. 3. As described by Komarov,
[u]pon successful snapshot creation the backup utility 200
analyzes data allocation on all volumes included to the snapshot
and compiles the backup-list 205 from blocks that constitute files
selected for backup. Other blocks of the snapshot constitute a
collection of unnecessary blocks. Unnecessary blocks are
removed from the shrinkable snapshot 220.”
Komarov 1 80.
Komarov’s analysis of data allocation on all volumes and removal of
unnecessary blocks appears to support the Examiner’s finding that Komarov
teaches the disputed limitation “removing a number of the copied data
blocks representing data not selected for replication while maintaining
original offset positions of said data blocks in said first range in the copied
data blocks in said second range,” as recited in claim 1.
In the Reply, Appellants argue the Examiner’s assertion regarding
“maintaining original offset positions of said data blocks in said first range
in the copied data blocks in said second range” as being well-known by
those skilled in the art contains a new grounds of rejection. Reply Br. 6—7.
To the extent Appellants seek procedural relief (i.e., relief other than
reversal on the substance of the rejection), such relief is only available by a
timely petition under 37 C.F.R. § 1.181 (see Manual of Patent Examining
Procedure (MPEP) §§ 1002 and 1201) and is not within the jurisdiction of
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Application 12/497,433
the Board. In re Mindick, 371 F.2d 892, 894 (CCPA 1967). Records from
the USPTO’s Patent Application Locating and Monitoring electronic
database (PALM) contain no evidence that Appellants filed a petition under
37 C.F.R. § 1.181 to challenge the Examiner’s allegedly untimely
introduction of the new grounds of rejection. Accordingly, we treat any
potential procedural challenge as waived (see MPEP § 1207.03(IV)), and do
not address Appellants’ arguments regarding this petitionable matter.
For the reasons set forth above, Appellants have not demonstrated
Examiner error. As such, we sustain the Examiner’s obviousness rejection
of claim 1 and its dependent claims 2 and 4, which Appellants do not argue
separately. App. Br. 14.
Independent claim 7 is similar to claim 1, except for the limitation that
“a controller of said storage array . . . deallocates a number of the copied
data blocks allocated to unused data blocks in said second range while
maintaining original offset positions of said data blocks in said first range in
the copied data blocks in said second range” (emphasis added).
Appellants present the same arguments presented against claim 1, i.e.,
Komarov’s “blocks that constitute files selected for backup are simply
copied to another data storage device without consideration of offsets with
those data blocks copied.” That is, Komarov does not teach or suggest “de-
allocat[ing] a number of the copied data blocks allocated to unused data
blocks in said second range while maintaining original offset positions of
said data blocks in said first range in the copied data blocks in said second
range,” as recited in claim 7. App. Br. 14—16 (emphasis added).
We are not persuaded the Examiner erred. Contrary to Appellants’
arguments, Appellants’ Specification describes “de-allocating unused blocks
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in the replica” as part of the final “cleanup” process, and is not part of the
mapping process. Spec. 149. As such, we find Appellants’ Specification
does not teach or support the teaching that “copied data blocks allocated to
unused data blocks” can be de-allocated “while [at the same time]
maintaining original offset positions of said data blocks in said first range in
the copied data blocks in said second range” in the manner recited in
Appellants’ claim 7.
Nevertheless, to the extent the disputed limitation of Appellants’
claim 7 can be understood in the context of Appellants’ Specification, we
agree with the Examiner that a skilled artisan at the time of Appellants’
invention would understand Komarov’s analysis of data allocation on all
volumes and removal of unnecessary blocks would necessarily involve “de­
allocating] a number of the copied data blocks allocated to unused data
blocks in said second range while maintaining original offset positions of
said data blocks in said first range in the copied data blocks in said second
range,” as recited in claim 7 (emphasis added).
For these reasons, we also sustain the Examiner’s obviousness
rejection of claim 7 and its dependent claims 8, 10, 11, and 13, which
Appellants do not argue separately. App. Br. 15.
Independent claim 14 is also similar to claim 1, except for the
limitation “copy data blocks from said first range that contain said data files
selected for replication Tare copied] to said corresponding data blocks in said
second range, while maintaining original offset positions of said blocks in
said first range in copied data blocks in said second range” (emphasis
added).
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Appellants reiterate the same arguments presented against claim 1,
i.e., Komarov’s “blocks that constitute files selected for backup are simply
copied to another data storage device without consideration of offsets with
those data blocks copied.” Thus, Komarov does not teach or suggest
“copying] said data blocks from said first range that contain said data files
selected for replication to said corresponding data blocks in said second
range while maintaining original offset positions of said data blocks in said
first range in the copied data blocks in said second range,” as recited in
claim 14. App. Br. 16—17 (emphasis added).
We disagree. For the same reasons discussed relative to claims 1 and
7, and to the extent the disputed limitation of Appellants’ claim 14 can be
understood in the context of Appellants’ Specification, we agree with the
Examiner that a skilled artisan at the time of Appellants’ invention would
understand Komarov’s analysis of data allocation on all volumes and
removal of unnecessary blocks would necessarily involve “copying] said
data blocks from said first range that contain said data files selected for
replication to said corresponding data blocks in said second range while
maintaining original offset positions of said data blocks in said first range in
the copied data blocks in said second range,” as recited in claim 14
(emphasis added).
For the reasons discussed, we also sustain the Examiner’s obviousness
rejection of claim 14 and its dependent claims 15, 18, 19, and 20, which
Appellants do not argue separately. App. Br. 17.
With respect to Appellants’ arguments presented against claims 6, 9,
17, and 21, we are not persuaded and adopt the Examiner’s findings and
explanations provided on pages 6—8 of the Examiner’s Answer.
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OTHER ISSUES
In the event of further prosecution of this application, this panel
suggests the Examiner consider rejecting claims 1, 2, 4, 6-11, 13—15, and
17—24 under 35 U.S.C. § 112, first paragraph, as lacking written description.
In particular, Appellants’ claim 1 recites, inter alia: “removing a number of
the copied data blocks representing data not selected for replication while
maintaining original offset positions of said data blocks in said first range in
the copied data blocks in said second range.” Similarly, Appellants’ claim 7
recites, inter alia: “de-allocat[ing] a number of the copied data blocks
allocated to unused data blocks in said second range while maintaining
original offset positions of said data blocks in said first range in the copied
data blocks in said second range.” For the reasons discussed above,
Appellants’ Specification does not teach or support the teaching that “copied
data blocks representing data not selected for replication” can be removed or
de-allocated “while [at the same time] maintaining original offset positions of
said data blocks in said first range in the copied data blocks in said second
range,” in the manner recited in Appellants’ claims 1 and 7.
Likewise, Appellants’ Specification does not teach or support the
teaching that “data blocks from said first range that contain said data files
selected for replication [are copied] to said corresponding data blocks in said
second range while maintaining original offset positions of said data blocks
in said first range in the copied data blocks in said second range,” as recited
in claim 14.
As we find no description of the disputed limitations, as discussed,
claims 1, 2, 4, 6—11, 13—15, and 17—24, as currently presented, may lack
written description support under 35 U.S.C. § 112, first paragraph.
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CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1, 2, 4, 6—11, 13—15,
and 17—24 under 35 U.S.C. § 103(a).
DECISION
We AFFIRM the Examiner’s final rejection of claims 1, 2, 4, 6—11,
13-15, and 17-24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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